Cannon v. Oviatt
520 P.2d 883
Utah
1974
Check Treatment

*1 was in the doing something course of on employer. behalf of his nothing There was in the master-servant agreement here for calling such an indem- nity, and there is nothing to indicate that Samons in way negligent. authority We find plaintiff’s urgence to agency extend the contract beyond corners, its four but there is au- thority to contrary.1 CALLISTER, J., ELLETT, C. TUCKETT, CROCKETT and JJ., concur. CANNON, Appellant, Jacki Plaintiff al., Paula et Defendants OVIATT Respondent. Eugene MARTIN, ad W. litem Guardian Wall, Wall, B. Gregory Salt H. Brant Martin, minor, Jackie A. Plain appellant. plaintiff and City, for Lake Appellant, tiff and Berry Worsley, Snow & Raymond M. Christensen, City, for defendants Russell, Jay C. and Harold G. JACKSON respondents. Respondents. Defendants

Nos. HENRIOD, Justice: Court Utah. summary judgment Appeal from a March costs Affirmed with plaintiff.

defendant. Samons, was

Metcalf, employee of an er- manager to run by the latter’s

asked understanding store,

rand for the mileage for us- paid Metcalf would car, nothing While else.

ing his own collision, now errand, he had Samons, pay the dam- employer,

asks he theory, —that principal-agent

age, on a Agency (1953); 438 Restatement Cal.App.2d McCoy, Sec. 1. Earll v. 2d. *2 Thurber, City, M. Lake Anthony Salt for Cannon. Oberhansley Stephen W.

Curtis K. Cook, Oberhansly & Kinghorn, O’Connell, City, Lake for Martin. Salt Gunn, Gary D. Christian and H. Steven City, for Kipp Salt Lake & Oviatt. Hanson, Hel- City, Don J.
sley, Moffat and Moffat. West, Rawlings, Armstrong, David E. Schaerrer, City, for West & Salt Lake and Russell. Jackson CALLISTER, Chief Justice: plaintiffs, appeals separate arose ac- unrelated tions, they in- have consolidated since question law, common volved one name- ly, 41-9-1, U.C.A.1953, un- was Section plaintiff, Each constitutional? vehicle, in motor moving public state, per- sustained sonal injuries a vehicular accident. plaintiff Each initiated an action host, vehicle, driver to re- damages cover for the negligent operation of the vehicle. Each host asserted Section 41-9-1, 1953, as a de- U.C.A. defense and plaintiff nied Each urged unsuc- cessfully before the trial court that Statute, Guest denied equal protection him of the law under (14th Constitution the United States Amendment) and the Constitution of Utah I, (Article 24). appeal plaintiff

On each relies on the Merlo,1 reasoning set forth in Brown v. wherein the Court of California proffered held jurisdiction’s guest statute did not constitute a rational basis for the differen- tial treatment accorded by Cal.Rptr. 388, Cal.3d permitted highway” recovery by therefore lie but and was of classification scheme law. under other circumstances. protection of the equal a denial court, According rationality forth two distinct Brown decision tripartite classification scheme must be justifications for light purposes prevention of collu- evaluated hospitality and *3 protec- legislation. adjudi- No other case had found the lawsuits. The court sive defec- cated the constitutional on this fatally rationale issue basis. tion of It failed to ex- grounds: (1) tive on the The court stated that hospitality jus- differential why statute accorded plain provided inadequate explana- tification an as distin- guests to automobile treatment tion for the differential treatment accorded light of guests. (2) from other guished guests distinguished to automobile as from comparable legal developments recent guests. law, guests Under California hospi- doctrines, protecting the interest recipients hospitality may generally the with- tality rationally justify could demand that their hosts exercise care due guests. protection from legal drawal injure so as not to them.2 In a footnote prevalence of ignored (3) explained the time today, under- coverage which insurance enactment, a statute had closer be- any alleged rational connection mines doctrine, general since pro- and the prevention of lawsuits tween property at that duty time owners owed a prevention of hospitality. The tection of only care (business invitees determined lawsuits rationale was collusive only visitors) owed some lesser overinclusive, it barred as since defective of care (social to licensees Pres- guests). the fraudulent along valid suits ently, California, general duty of ordi- The further found claims. nary governs a landowner’s all duty to series aggravated by a classification was those on his property, guests social op- loopholes, stayed the limiting which gen- visitors business alike. Since variety eration of the statute under modified, eral tort doctrine has been illogical The circumstances. diverse singles guests automobile for a excep- explained the numerous special arbitrary burden and thus creates an pat- produced illogical tions absurd and unreasonable classification. rationality eliminated tern which purpose reasoned that state no realistic for the might conceivably be claimed which supported the classification scheme of the persons respect since situated with purpose (recipients of the law the stat- The court stated that California hospitality) do not like treatment. receive ute established three distinct levels of clas- act treated automobile (1) sification: statutory pur- court stated that the paying passengers. guests differently from pose fostering hospitality cannot ration- differently guests It treated automobile ally justify protection lowering recipients of guests from other social class, namely, one guests automobile as dis- from auto withdrew tinguished paying passengers. from negligently from inflicted court relied on Rowland Christian4 and injuries generally enjoyed by just stated that as it was unreasonable to distinguished other contexts. act lower the standard care to a visitor private guests, of auto with- property subclasses because he was a social recovery from holding guests injured rather invitee, than a “paying” it was “during “upon “in a a ride” vehicle” unreasonable to out an automobile Cal.Rptr., 2. Rowland 69 Cal.2d Cal. 3. No. 6 at no. 6 at Rptr. 97, 32 A.L.R.3d 496 219 of 506 P.2d. noted, danger previously the court in expose greater him to As Brown guest and extensively on paying passenger. v. Merlo relied Rowland negligence from than a prove invalidity paid nothing did Christian8 The fact that the negli- hospitality justification for the provide to excuse a reason ute. This case is in 32 cited A.L.R.3d gence of the host. part general as trend field of explained that The court further posi- tort laws eliminate technical status guest’s characterization lawsuit tions, had of insulating the effect completely ingratitude had been act of classes certain In an ex- uni- development of almost eroded planatory footnote,9 it is stated: cover- liability insurance versal automobile Today, the insurance age years. in recent probably This movement is a result of host, company general theory shift in the of tort law *4 protection recipient of the the of the emphasis regulation the from the on of opinion was of the rights between individuals the basis the doctrine would the elimination of viewpoint of relative fault toward of loss in most cases shift burden regards as a law device for injured motoring to individual primarily social engineering, concerned per- negligent rather host than to lic liability with allocation of in such a dis- sonally. The court concluded that the satisfactorily manner as protect to most guests criminatory of treatment automobile impact the social fabric from the of such upheld against could the constitu- not be injuries necessary probable as are a of the tional attack on the basis consequence complicated organiza- justification. society. tion [Emphasis of added.] logical

Brown is a conse effect, v. Merlo5 Merlo, Brown v. elevated this quence jurisdiction stemming in that from device for social to the engineering level prior their determination to abandon First, constitutional doctrine. this traditional tort that the status of a doctrine device as utilized in v. Rowland person duty him. determined the owed to the traditional between distinction invitees jurisdiction this In the distinction nullified, between resulting was licensees in the “invitees” or “licen “business visitors” and automobile alone denied the sees” or guests” “social has duty of his host. Second- preserved.6 an ly, Thus the classification of nullify hospitality justification, to automobile in Section directly incorporated the underly- 1953,does group out this one ing engineering, namely rationale social treatment than different accorded other that there should be an allocation of liabili- Likewise, guests. ty protect society distinction between so as from the im- paying passenger an pact such injuries. automobile has been widespread retained correlative distinc that the use of insur- tions between an invitee and part licensee. ance shifted all or burden of Thus, jurisdiction this an automobile loss from the individual the mo- guest has not public. process been isolated toring Through from all so- guests recipients engineering cial a legislative enactment in alone denied a due care the area of social economics and welfare host. into thrust conflict modified 1, supra. 1, supra. 5. Note 7. Note County, 6. Stevens v. 2d Utah (1970) ; Wood, 478 P.2d 496 Wood v. (1959) ; Tempest Utah 2d Footnote of 32 A.L.R.3d. Richardson, Utah 2d 299 P.2d (1956) ; Hayward Downing, 112 Utah 189 P.2d 442 promulgated by legislature rigidly the court. must be held tort doctrine opinion regulating choice The court was of the that the all none. [Cita- discriminatory utory day In this almost universal classification caused tions] car, transportation by and violated treatment to automobile motor we equal guarantees say Cali- protection originating cannot abuses multiplicity fornia United Constitutions. growing States of suits gratuitous evaluating carriage passengers the determination au- un- present conspicuous California court that the statute was tomobiles do so constitutional, example may two decisions of legislature there are an of what the sup- regard evil, justify legislation Court that United States as to it, port opposite though conclusion. aimed at even some abuses is not be hit. [Citations] Silver,10 the Connecticut Silver v. enough present statute strikes at deny equal statute was claimed felt, it the evil where reaches the law on the frequently class of cases where it most passen- distinguished gratuitous occurs. gers in and those in other automobiles respond- interpretation recent- similar has been classes of A vehicles. Williams,13 ly Dandridge set forth in ed:11 wherein the court stated: as an in- use the automobile *5 and social In the area economics peculiarly transportation is strument of welfare, does not violate State subject regulation. We cánnot merely because Equal Protection Clause no be cor- that there are evils to assume by are its laws the classifications made objects to be permissible social rected has some imperfect. If the classification are present We gained by basis,” not offend “reasonable does frequency increasing not unaware of the the classifi- simply because Constitution passengers in carried litigation “is mathematical not made with cation automobiles, casual in often gratuitously practice in it results nicety or because licensees, re- sought the guests or have prob- “The inequality.” some [Citation] injuries alleged covery large sums for ones government practical are lems operation negligent have been due require, they if do not may justify, se- has . . there been Whether illogical, it rough accommodations— in the evils vexatious rious increase “A be, unscientific.” [Citation] cases, where litigation in this class will not be discrimination automobile, leg- is for carriage by is may be con- of facts aside if state and, found, may if islative determination justify it.” ceived [Citation] legislative action basis of well be the n n n n n n Its wis- restricting the further Equal Protection . But courts. is the concern of dom not require that State does not Clause discriminatory alleged regard to attacking every as- must choose between classification, stated:12 the court attacking the pect problem or not enough problem re- at It is all. is no constitutional . . there [Citation] . rationally be re- action regulation, State’s quirement that a every discrimi- and free from invidious reach based permissible, must spects . applied might nation to which it class —that pp. U.S., 12. At 123-124 of at 59 L.Ed. 280 U.S. 50 S.Ct. (1929). S.Ct. 471, 485, 486-487, pp. U.S., S.Ct. at 58 of 397 U.S. 122-123 of 280 At 1153, 1161, 25 L.Ed.2d 50 S.Ct. The use of the motor vehicle was public highways validly subjected has provide enacted to some to a legislative regulation. presence host, by who is sued his invited guest in this area would itself create a guest negligence, when the compensation basis for a distinct classification from oth- given rider has as an in er there trip located where was no over- making furnishing ducement for public whelming The motor vehi- carriage interest. for the This act sub- rider.14 purpose cle exerts a dominant influence in contem- legislative served a valid to en porary society many public and its use creates courage hospitality in the use problems. Furthermore, economic and social a state highways. the automobile portion our significant jurisdiction placed such Utah in a is not classification, economic resources must to the be devoted distinct he alone as a where highways; construction and recipient deprived maintenance the economic burden bears a direct rela- of due host. tionship to the number of and the vehicles In Brown v. Merlo15 the court total mileage highways cumulative on the stated that the second for the year. encourages each prevention statute was the of collu directly affects the number sive lawsuits. classification present highways, vehicles on the thus allegedly predicated on the was avoiding congestion traffic wear concept a free ride gave driver who roadway. surfaces of the passenger to a his close motivated promotes petroleum ute the conservation of guest, with his and the driver and other natural resources consumed might admit to assist the suggestion travel. The collecting company. from the insurance

burden of should be rejected this rationale on the public borne lia- motoring through prior though caselaw intra- *6 bility insurance is an economic and social family immunity rejected. tort had properly subject legisla- solution that is to The cited Klein it court v. Klein wherein rejected possibility a claim that tive Legislature determination. The is the fraudulent lawsuits between a husband and proper forum to consider the alternative wife as a served sufficient to problem solutions for the interspousal negligence bar all actions. guest. Act, The No Fault Insurance 31- Gisseman,17 Rubalcava v. this held court seq., 41-1 et provides U.C.A. a com- that a wife not maintain action promise, compen- receives limited against her This husband or his estate. injuries, hospitality sation for is en- while to declined follow Klein v. Klein and couraged by exposing the host to un- legislature stated that this liability staggering limited insurance proper change court was the forum to suggested simplistic rates. The solution in rule. Thus Utah the statute does motoring public that the bear the should not create a distinct classification for auto injured guests ignores costs of the the eco- mobile compared as to others insofar consequence nomic that increased claims as collusive are lawsuits concerned. be will reflected in increased insurance The court stated in Brown v. Merlo18 rates, creating hardship economic exceptions statutory that the had numerous recovery chilling hospitality. recovery host and or un- rendered lack of Mower, (1963). 294 P. 14 Utah 2d 4 Utah 2d 384 P.2d 389 Jensen (1956). 2d 683 1, supra. 18. Note 1, supra. Cal.Rptr. 58 Cal.2d happen arising which largely fortuitous course statute

der irrationality to out of the ride .... element another added explained statutory The court scheme. interpretation of rise giving to by this has averted the al might occupant the driver irrationality leged classifi the course during fluctuate cation which disturbed the court in Brown within brought them ride, circumstances Furthermore, Equal v. Merlo. Protec the statute. language and without compel tion does not to Clause the State distin- the statute observed aspect every problem attack or re to (1) whether basis of guests on the guished all; frain action at suffi momen- to a journey had come or not the rationally cient that the State’s action be guest was halt; whether tary based free from invidious outside inside or physically located discrimination.21 on a car; car was whether the rulings of the trial courts these private or land. lic actions sustaining constitutionality oper- statutory exceptions that these found 41-9-1, are affirmed. ine- serious to cause illogically as ated so Costs are awarded to defendants. bear the re- they did not and that quality objective of to either relation motest TUCKETT, JJ., ELLETT and concur. preventing collu- protecting court concluded lawsuits. sive HENRIOD, (concurring). Justice limiting circumstances, these under concur, except say I to I can see fur- constituted provisions of the statute relevancy whatever the case of Andrus equal protection. ther denial Allred, opinion, cited as to the Allred,19 this court In Andrus v. problems facts in the instant involved U.C.A.19S3, should that Section case. sufficiently reason practical and given a which incidents cover application able CROCKETT, (concurring spe- Justice This the ride. integral part of occur as cially). such give court declined impelled joining I am to forswear in ex- as to interpretation and literal narrow patiation state, a case of sister occur might which eliminate incidents anyway. we decline follow stopped, however vehicle was addition us binding on *7 purpose. This court any and for briefly event, any is decided back- different significantly :20 of law own, impresses mainly and it me as our a sensible opinion that is our with rationalizations toward concerned of this application realistic repudiating desired result of their statute. ective, requires obj conformity its with Consequently, my briefly I desire to state entire extend over refusing own reasons strike down relationship in connection host-guest our own: ride. taking of the giving (1) was enacted relationship here Our host-guest . the legislature advisedly, to alle- car at into the getting include must also viate actual had oc- abuses which of it when getting beginning curred, occurring.1 and were any incidents completed and the ride is 1. See discussion of stat Utah 2d 404 such ute based on the use of automobiles as 2d, of 404 at 110 of Utah 20. At aspect important an essential of modern P.2d. living subject spe appropriate that it is an thereon, legislation Williams, Dandridge cial classification and note Although it completely has not Inasmuch as it came into as an ex- at, cured the ills it was pression aimed when of the will people through properly applied, it has sal- enactment, had the legislative if is to be there utary effect of minimizing them. important such substantial and change in process, law it should be that same It has effect for over 40 years.2 by judicial pronouncement.3 salutary purposes justifying Originally Chap. 52, enacted S.L.U.1935. forth Justice Worthen Jensen Mower, 683; Stanton, 4 Utah 2d P.2d 3. See statement Stanton v. 30 Utah Allred, 2d see also Andrus Utah 2d and authorities there- 404 P.2d 972. in cited.